IMPORTANT POINTS
Principle of equal pay for equal work has been extended to temporary employees (differently described as work-charge, daily wage, casual, ad-hoc, contractual and the like).
The plight of the porters in the Indian Army is against the mandate in Articles 14 and 16 of the Constitution.

JUDGMENT

Dr. D.Y. CHANDRACHUD, J

The petitioners – twenty nine of men – have been engaged as porters in the Indian Army as casual labouror daily wage employees in the border areas of Rajouri, Jammu and Poonch. Annexure P-1 to the writ petition, which has been instituted under Article 32 of the Constitution of India, contains photocopies of identity cards issued by the army authorities. The grievance is that the petitioners have not been treated as regular employees and have been denied the benefit of minimum pay-scales despite long years of service in arduous conditions prevalent in a difficult terrain. According to the petitioners, many of them have worked for long years. Details have been furnished of the period over which they have been engaged in the writ proceedings. The relief which they seek is in the following terms :

“(a) ..an appropriate writ in the nature of mandamus or any other writ, direction or order commanding respondents to treat petitioners as regular civilian employees in the Indian Army and extend them all benefits which are being given to the regularly appointed / recruited porters discharging..identical work by treating already rendered services by the petitioners as .. by regularly appointed/recruited porters.”

2. Similarly situated porters engaged by the Indian Army as casual labour instituted a proceeding before the Armed Forces Tribunal at its Principal Bench in New Delhi. [O. A. Nos. 302 & 204 of 2010] By a judgment dated 11 May 2010, the Tribunal held that since the porters are not subject to statutory provisions which govern the Army, Navy and Air Force, their grievance did not fulfil the definition of a ‘service matter’ under Section 3(o) of the Armed Forces Tribunal Act, 2007. Hence by the judgment of the Tribunal, the application was dismissed.

3. Special Leave Petitions were moved before this Court which eventually resulted in a judgment dated 14 May 2013 in Isher Singh v. Union of India, Civil Appeal Nos. 6248-6249 of 2010 . Leaving open the issue of jurisdiction, a Bench of two learned Judges of this Court held that the appellants were working for between fifteen and twenty years. Hence, in the view of the Court, the observations contained in paragraph 53 of the decision of a Constitution Bench of this Court in Secretary, State of Karnataka v. Uma Devi, (2006) 4 SCC 1 “would come in their aid”. For convenience of reference the observations in Uma Devi have been extracted below :

"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore vs. S.V. Narayanappa (1967) 1 SCR 128, R.N.Nanjundappa vs. T. Thimmiah (1972) 1 SCC 409 and B.N.Nagarajan vs. State of Karnataka (1979) 4 SCC 507, and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement an